Sunday, January 27, 2013

A D.C. judge's order barring a tenacious antiabortion protester from setting foot anywhere in the city has touched off a vigorous debate over free speech and political dissent in the nation's capital.

Rives M. Grogan's decision on Inauguration Day to climb a tree to make his point within sight of the president has united conservatives and liberals in their own protests.

"Banning him from the District because he's sitting in a tree or speaking out, I think is absurd," said John Whitehead, president of the Rutherford Institute, a civil liberties group that is taking up Grogan's case. "He's strange, but do you know how many strange people enter D.C. every day who probably shouldn't be here?"

Magistrate Judge Karen Howze signed the order Tuesday, telling Grogan to stay out of the city until a court hearing Feb. 25. The order is more sweeping than what prosecutors had sought. The U.S. attorney's office had asked that Grogan be banned from the Capitol grounds, House and Senate office buildings, the Library of Congress and the U.S. Supreme Court.

An anti-abortion protester

But Howze broadened the request as a condition of releasing Grogan from jail until his trial.

Exiling someone from the District's entire 68.3 square miles of roads, waterways and public spaces happens a few times a year but is still described as rare. The breadth of the order surprised First Amendment experts who have litigated or studied similar protest cases for liberal and conservative causes.

It is "a pristine example of an overbroad condition," said David L. Hudson Jr., a law professor and First Amendment scholar at Vanderbilt University. "They need to go back and draft a more narrowly tailored restriction -- meaning something that would comport with the First Amendment."

Judges are not allowed to talk about pending cases, and Howze, through a spokeswoman, cited the restriction in declining to comment.

Grogan, 47, who calls himself "Pastor Rick" and runs a ministry and boarding house in Los Angeles, admits he's an irritant, racking up about 10 arrests and a half-dozen convictions in two years in House and Senate buildings alone.

He said he patiently waits for the proceedings to be gaveled into recess before he stands and shouts — most recently in the Senate gallery when he screamed that legal abortions caused the massacre in Newtown, Conn.

"I preach, and I preach loudly on Capitol Hill," said Grogan, who said he's never spent more than a few days in jail. He's been thrown out of a presidential debate, a Major League Baseball game attended by Mitt Romney and too many buildings to count.

"Most of the time, they arrest me, and then they let me go," he said. But never, he said, had he been tossed from a city. He spoke by telephone from his red Ford Fiat as he drove home to California on Wednesday. By late morning, he was in Kentucky, a safe 550 miles from the District line.

"I don't know why they would ban me from all of Washington," he said. "I think they are totally suppressing my freedom of speech."

Grogan said he obtained a ticket for the green section of the inauguration and hid a protest sign under his coat. Once past security, he said, he climbed the tree and began shouting. U.S. Capitol police officers used a bull horn to urge him down, then tried 35-foot ladders. But Grogan said he climbed higher and managed to stay 10 feet out of reach for five hours, getting a tree-top view of President Obama's swearing-in.

"It was the best seat in the house," he said.

Grogan climbed down after about five hours, after the ceremony had ended. His charges include violating laws that require authorities to "preserve the peace and secure the Capitol from defacement" and to protect the "public property, turf and grounds from destruction."

Howze was not insensitive to Grogan's free-speech rights but was weighing those against safety issues, according to a transcript of the proceedings. Grogan's recurring arrests elevated her concerns, the transcript shows.

"While trying to exercise free speech, the more ... these things happen, the more you put yourself in jeopardy because we have to determine if this is a danger to the community," Howze said in the transcript. She reminded Grogan that he could have been held in jail because of his pending cases, rather than released with the restriction to stay out of the District.

Grogan, she said, "appears to endanger hundreds of people, disrupting the inaugurationthroughout."

The police charging document filed in court accuses Grogan of breaking several tree branches. A spokesman for the Capitol police said authorities did not deem Grogan a threat to the president. But Grogan, who has at least three pending cases in the District, was "jeopardizing his life and the life of others" if the tree branch broke, the arrest report says.

James E. Felman, a Tampa defense attorney and co-chair of the American Bar Association's sentencing committee, said that if the tree branch "is your public safety argument for the stay-out-of-town order, it is really dubious. If the tree branch is your argument, order him not to climb trees over the heads of people."

The order was stunning because it came as a case was pending -- before conviction or resolution, said Arthur Spitzer, legal director of the American Civil Liberties Union of the Nation's Capital.

"An order like that arguably could make more sense after the person has been convicted, and I am not saying I would agree with that even then for an entire city," Spitzer said.

Protesters previously have faced restrictions on their movements before their case was resolved, District court records show.

In 2007, a Code Pink antiwar protester accused of shouting "war criminal" and waving blood-colored hands in the face of then-Secretary of State Condoleeza Rice during a congressional hearing was ordered to stay away from Rice and also an area of the Capitol grounds, with boundaries defined in the order by specific street references, court records show.

Grogan said that he has no plans to violate his ban but that he was looking forward to the next sanctioned return to the District -- his court hearing next month. He plans to arrive early.

"They can oppress my speech and keep me out of the city," he said. "But what they can't do when I am allowed back is to stop me from preaching on the steps of the courthouse."

Sunday, January 20, 2013

Attorneys for two Ohio teenage football players accused of raping a 16-year-old student have asked that the trial be moved because potential witnesses are afraid to come forward in defense of the boys, one of the lawyers said on Monday.

Walter Madison, the attorney for one of the accused rapists, Ma'lik Richmon, said social media efforts to bring the alleged rape into the national spotlight have led to an atmosphere of intimidation and coercion.

"This has a chilling effect on witnesses who could come forward to be part of this process so my client can get a fair and full proceeding," he told Reuters. "So, we're left without the opportunity to make our case. That's pretty serious."

Richmond and Trenton Mays, both 16 and members of the Steubenville High School football team, are charged with raping a 16-year-old fellow student at a party last August.

The two students are set to be tried as juveniles in February in Steubenville, a city of 19,000 about 40 miles west of Pittsburgh.

Madison said his client's mother has had to change her cell phone number multiple times due to threats and harassment.

Last week, the online activist group Anonymous made public a picture allegedly of the rape victim, being carried by her wrists and ankles by two young men, and of a video that showed several other young men joking about an alleged assault.

Madison said that Richmond is not seen in the video.

A county sheriff under fire for how he has handled the high school rape investigation faced down a crowd of protestors on Saturday and said no new charges will be brought against anyone involved in the case.

Activists say there had been a cover-up by local officials to protect the integrity of the high school's football program.

Meanwhile, a petition to the White House calling for the two rape suspects to be tried as adults reached 25,000 signatures Monday, the threshold required to receive a response from the Obama Administration.

Moving the case to the adult court system would allow for a jury trial and a more severe penalty, the petition says.

"This is a serious offense and this needs to be an example for everyone that this type of behavior should not, and will not be tolerated in our society," it says.

The petition, created December 25, more than doubled its number of supporters overnight. It had 11,000 signatures on Sunday.

It was submitted to the White House through its online petition website, We The People. Now that it has the required 25,000 signatures, the Obama Administration will give an official statement at some point in the future. The petition has no legal impact.

Gov. Mark Dayton and the DFL-controlled majorities in the legislature have promised to balance the state's $1.1 billion budget deficit with a two-pronged approach: spending cuts and "tax reform" that would increase the revenue coming in to the state's coffers.

Last week, bills that would expand the state's sales tax to include clothing priced at more than $200 and purchases made online were discussed in St. Paul.

It is no secret that a bill to tax legal services will also be introduced at some point this session, and the state bar association is already preparing to lobby against the proposal. There is simply no variation or language of a bill that would tax legal services that the MSBA could support, said the bar's president Bob Enger.

"No proposal I have seen would [add a tax to legal services] fairly or realistically," he said. "The tax would end up becoming a barrier to justice put on people who can barely afford to access to the justice system right now."

This isn't the first time the idea has been considered in some variation, and there are a handful of states in the U.S. that tax legal services. Since 1987, only two states have enacted such a tax, but both quickly repealed it as opposition grew louder. During Gov. Jesse Ventura's term and Gov. Tim Pawlenty's second term in office, proposals were introduced.

Economists describe Minnesota's sales tax as "narrow" when compared to other states. Many goods and services are exempt. When compared to income and property tax, sales tax accounts for only about a quarter of total revenue collected -- well below the nationwide average. In addition to legal services, a sales tax would include all professional services such as accounting and financial planning.

Sen. Ron Latz, DFL-St. Louis Park, is chairman of the Senate Judiciary Committee. He is also an employment and criminal defense attorney. He said he favors expanding Minnesota's sales tax to purchases made over the Internet, but he is skeptical of a tax on legal services.

"Where do you draw the line? That's the debate. We needed to broaden the base, but you want to have a level playing field for businesses in Minnesota and the rest of the country. If the rules exist, they should be fair for everybody," he said.

He is not sure how much momentum a tax on legal services would have among his fellow lawmakers or how likely it is the tax would be approved.

Under Ventura, the tax would have applied across the board to all legal and other professional services. In later years, business-to-business transactions were exempted. Some proposals sent the money collected to the state's general fund, while other ideas suggested putting the money in a silo to help fund the state's civil legal services.

The ideas died, but the phrase "tax on legal services" is still greeted like a bad ghost story in the conference rooms of large firms in the metro area and the break rooms of small firms in outstate Minnesota alike. In fact, it may be the one thing that scares lawyers the most -- from plaintiff's attorneys, to family law, to corporate and everywhere in between.

The reasons cited for the opposition run from altruistic to capitalistic.

They say a tax on legal services would hurt Minnesota businesses and put Minnesota attorneys at a competitive disadvantage in an increasingly global marketplace.

"Legal services are incredibly portable," said Rich Thomas, the legislative co-chairman of the Minnesota Defense Lawyers Association. "A tax here would increase the cost of business, and businesses need lawyers. If you put an extra 6.5 percent on top of a business's legal bill, that is 6.5 percent more incentive for them to use their in house staff and not hire me."

A tax in Minnesota would be great news for law firms in North Dakota, Wisconsin and Iowa, Thomas said.

A tax would also be hard to administer. Lawyers and nonlawyers are allowed to draft real estate documents, conduct closings and prepare tax returns. Would both groups be taxed or just one? And what about cases that involve lawyers from Minnesota and those from out of state? How would the state collect sales tax from non Minnesota attorneys?

Attorneys argue that a tax on legal services wouldn't be paid by the attorneys but rather passed on to consumers in their legal bills.

If enacted, regular people would unfairly be hit with the burden, said Enger. Many consumers of legal services have to hire a lawyer through no fault of their own. They aren't getting sued for wrongdoing or being criminally prosecuted; rather, they need a lawyer to get a divorce, set up a will or because they were injured in a car crash. It is not a true consumption tax on a nonessential service. With a tax on their legal bills, people would either end up representing themselves in court or chose not to pursue the issue. And if business-to-business transactions are excluded, the imbalance only gets worse, he said.

Enger said the idea plays well in the public because lawyers are an easy target when the state needs money. But the majority of attorneys don't earn nearly as much money as the general public thinks. For a small firm or solo attorney starting out soon after graduation with tens of thousands of dollars in debt, the tax could be a serious hardship -- especially if they have to chase down clients to promptly pay their bills or wind up paying the tax themselves.

"There is only so much blood you can squeeze out of the turnip," he said. "This just isn't the best avenue to cure Minnesota's financial problems.”

Sunday, January 13, 2013

After nearly four months of on-again, off-again negotiations, players and owners in the National Hockey League have finally agreed to a tentative labor deal that will end a management-imposed lockout that entered its 114th day on Monday.

The NHL's lawyers from Proskauer Rose and Skadden, Arps, Slate, Meagher & Flom finally reached an agreement with their counterparts at the National Hockey League Players' Association in the early morning hours of Sunday, January 6, after a marathon 16-hour negotiation session that involved emissaries shuttling between league headquarters and union advisers camped out three blocks away in the Grand Ballroom of the Sofitel New York Hotel.

After a quick two-hour nap, the NHL's outside counsel and their in-house counterparts returned to the tedious task of drafting a 10-year contract with the NHLPA that will split league revenues 50-50 between players and owners. The agreement also ensures labor peace until 2020, and averts the potentially catastrophic cancellation of the NHL season, just eight years after the league scuttled an entire year of play during its last period of collective bargaining unrest.

Leading the legal team for the NHL on its negotiations with players are Proskauer labor and employment partners L. Robert Batterman and Joseph Baumgarten, and Skadden antitrust practice leader Shepard Goldfein and partners James Keyte and Paul Eckles. Last month both firms were on hand for the league when it filed a lawsuit and unfair labor practice charge against the NHLPA.

Only a few weeks ago the possibility of a deal between warring players and owners was so dire that ice hockey-starved websites -- usually busy this time of year covering top teams and star goaltenders, wingers, and defensemen -- were forced to transition to posting fictitious drafts of top legal advisers to both sides.

The NHLPA is led by executive director Donald Fehr, a former longtime head of the Major League Baseball Players Association and a disciple of the legendary sports labor union leader Marvin Miller, who passed away in late November at 95. Fehr retired from the MLBPA in 2009, and pro hockey players elected him as their head the following year to take a hard line against owners ahead of negotiations on a new deal to replace the old collective bargaining contract that expired in September 2012.

The Toronto-based NHLPA turned to Montreal's Melancon, Marceau, Grenier & Sciortino and Edmonton's Blair Chahley for preliminary legal skirmishes that month against the league in Quebec and Alberta that were aimed at declaring any potential lockout illegal under Canadian law. Those efforts were for the most part unsuccessful, and Heenan Blaikie and McLennan Ross took the lead advising the New York-based NHL on proceedings north of the border, according to our previous reports.

In December, The Am Law Daily reported on the NHLPA's retention of Weil, Gotshal & Manges litigation cochair James Quinn and partner Bruce Meyer to represent it in a suit filed by the league in Manhattan before U.S. District Judge Paul Engelmayer, a former Wilmer Cutler Pickering Hale and Dorr litigation partner appointed to the bench in 2011. (The American Lawyer named Engelmayer one of its federal judges to watch this past fall.)

On January 3, Weil filed a motion to dismiss the league's case against the union. The NHLPA had already begun the process of dissolving itself as a union so its rank-and-file could proceed with an antitrust suit against the NHL and its owners, a process tried in recent years with varying degrees of success by players in the National Football League and National Basketball Association.

But last week, NHL players and their union representatives reportedly let pass a self-imposed deadline for decertification and let Scot Beckenbaugh, deputy director of the Federal Mediation and Conciliation Service, act as a key intermediary with league owners and management.

FMCS director George Cohen appointed Beckenbaugh, director of mediation services John Sweeney, and commissioner Guy Serota to act as mediators in late November. But Serota was out of the process before it even began as his Twitter account was hacked‚ leading to a series of bizarre tweets and Beckenbaugh assuming his lead role in the matter.

Lawyers familiar with the negotiations between both the NHL and NHLPA claim that Beckenbaugh was more than just in the right place at the right time. One attorney credits him with possessing all of the valuable qualities of a top-notch mediator by helping to quickly "start the end-game process" that eventually led to a new labor deal. (By presiding over the agreement, some NHL observers, tongues firmly in cheek, are touting Beckenbaugh as a potential MVP candidate.)

The NHLPA was fractured during and after its last collective bargaining battle with the league. Former executive director Paul Kelly, who joined Jackson Lewis last year, settled an employment suit against the union in 2010. This time around, however, the NHL faced a more united front.

Donald Zavelo, a former National Labor Relations Board attorney hired as the union's general counsel last year, took a lead role in the collective bargaining negotiations, as did special counsel Steven Fehr, the younger brother of Don Fehr and another veteran of hard-fought labor battles with the union's executive director at the MLBPA. (The Am Law Daily looked last year at some of the MLBPA's outside legal fees under Don Fehr; provincial labor laws in Ontario do not provide for similar such disclosures by the NHLPA.)

As for the NHL, the league's longtime connections to Skadden and Proskauer are readily apparent when glancing at the resumes of the top executives that took the lead for the league on its negotiations with the players union. NHL commissioner Gary Bettman, general counsel David Zimmerman, and associate counsel Jessica Berman are former Proskauer lawyers, while deputy commissioner William Daly and deputy general counsel Julie Spar Grand once worked at Skadden.

Federal tax filings show that the NHL, a registered nonprofit, paid nearly $6.1 million to Skadden, more than $1.7 million to Proskauer, and another $979,589 to Covington & Burling during the period between July 1, 2010, and June 30, 2011. Bettman earned nearly $8 million in compensation during that fiscal year, while Daly and Zimmerman received almost $2.9 million and $975,037, respectively, according to 2010 tax documents, the last year for which records are available.

If the NHL and NHLPA can quickly ratify an agreement, training camps can begin by Wednesday, and an abbreviated 50-game season can start on January 15, according to sources familiar with the deal. The NHL's board of governors is poised to vote on the finalization of a new labor accord on Wednesday. Its passage could mean that another ongoing legal headache for the league might also soon be resolved.

In other NHL-related legal news, Skadden corporate partners Marc Packer and Thomas Gowan in New York are advising the league on its proposed sale of the Phoenix Coyotes to an investor group led by Greg Jamison, a former president and CEO of the rival San Jose Sharks. Jamison has been circling the Coyotes for more than a year, but has also been seeking additional financing to close a deal.

The NHL, advised by Skadden, bought the Coyotes three years ago after their former owner Jerry Moyes and his lawyers from Squire Sanders put the team into bankruptcy in order to move forward with a proposed $212.5 million sale of the franchise to BlackBerry founder Jim Balsillie.

But the NHL wasn't keen on Balsillie's plan to buy the Coyotes and move them to Hamilton, Ontario. Instead the league fought Balsillie's proposed purchase of the franchise -- which initially moved to the Arizona desert in 1996 from Winnipeg -- and prevailed in November 2009 when a U.S. bankruptcy judge approved the NHL's $140 million acquisition of the Coyotes. Jamison emerged as a contender to buy the team in the summer of 2011, a few months after Skadden's Gowan advised the NHL on a plan to bring pro hockey back to Winnipeg with the $170 million sale of the Atlanta Thrashers to a local ownership group.

Jamison is being advised on his bid to buy the Coyotes by Lewis and Roca real estate partner Richard Goldsmith in Phoenix and Clarence Kellogg Jr., corporate counsel with Hopkins & Carley in San Jose, according to lawyers familiar with the deal and public records filed with the Phoenix suburb of Glendale, where the team plays its games. (Lewis and Roca previously served as local counsel to Balsillie on his ill-fated bid to buy the Coyotes out of bankruptcy court.)

Alan Meda, a bankruptcy partner with Stinson Morrison Hecker in Phoenix, is serving as local counsel to the NHL. The league's sale of the Coyotes to Jamison, who has until January 31 to close on the transaction, hinges on a controversial $320 million arena management deal with Glendale that allows for municipal funds to flow into the team's coffers.

That aspect of the transaction has been a controversial one in Phoenix. A team of lawyers from local firm Mariscal, Weeks, McIntyre & Friedlander led by litigation partners Gary Birnbaum, Barry Sanders, and Andrew Pringle have successfully represented Glendale is a series of legal challenges to the agreement with Jamison's proposed ownership group. (Dickinson Wright absorbed 60-lawyer Mariscal Weeks last week, according to our previous reports.)

At the moment, most of those challenges have been resolved, says Birnbaum, noting that Phoenix-based conservative public policy organization the Goldwater Institute was one of the challengers. (Stephen Tully, co-managing partner of the Phoenix office of Gordon & Rees, represented another group that unsuccessfully challenged sales tax increases by the municipality of Glendale.)

Fennemore Craig corporate partners Sarah Strunk and Aaron Cain in Phoenix are advising Glendale on transactional and documentary issues related to the sale of the Coyotes. Glendale city attorney Craig Tindall, chief deputy city attorney Nick DiPiazza, and assistant city attorney Christina Parry are also working on the matter.

Parents of hockey players on the Dalhousie University women's hockey team are trying to raise money as they consider mounting a legal challenge to get their daughters back on the ice.

Earlier this month, 17 of the 22 players on the team were suspended for the season after an investigation into a September team party.

With only five players remaining -- all first-year players -- it was impossible to put together a team and the Dalhousie Tigers women's hockey team was forced to forfeit the rest of the season.

The players have been benched, but some of their parents aren't going down without a fight.

"There is the possibility of a legal process. We believe that a court would say to Dalhousie that the process is flawed," said parent Sue Charlesworth.

Earlier this week the team released a statement disputing the university's version of the hazing incident.

'Hockey tradition'

The said rookies on the team were sent out on a scavenger hunt for things like sardines, whip cream and then made to eat them.
They were also told to dress up in odd clothing, play drinking games and answer questions about them, but player Laura Brooks said it wasn't out of line.

Dalhousie said it doesn't see it that way and despite pleas from players and parents the season remains cancelled.

The team is forging ahead with parents raising money online to hire a legal team.

Charlesworth said a court case could cost around $20,000.

"There are people who feel strongly and I think are willing to help out. Parents have gotten together to consider [it]. This is something we are seriously contemplating," she said.

The players are meeting with the university president on Monday.

Charlesworth says the team will consider legal action if the meeting doesn't go well.

A spokeswoman representing the team declined to comment on the fundraising.

Wednesday, January 2, 2013

Hoping to get beyond the debate over new gun-control laws, a group of economists and legal scholars is floating another plan they say could cut down on spree shootings: require all gun owners to carry liability insurance, similar to what automobile owners must have.

The plan, which was floated in Illinois' legislature in 2009, draws the ire of gun-rights groups who say it infringes on Americans’ Second Amendment rights and unfairly targets law-abiding gun owners. But backers say it offers a way to ferret out potentially dangerous or unstable criminals from the ranks of gun owners without having the federal government enact outright bans.

The horrific shooting at Sandy Hook Elementary School in Newtown, Conn. last month ignited a new national debate over gun law, but the liability insurance proposal may not have prevented that tragedy. Shooter Adam Lanza used firearms owned by his mother to kill her and then 26 children and administrators at the school before taking his own life.

"If you own a gun, you should expect some due diligence of all people who own guns," said Tricia Dunlap, a Richmond-based lawyer. "We can stop debating about whether you can own a gun, because of course you can. Do we ban assault weapons? No, it doesn’t work. God, we’ve been having that debate for 20 years. Can we come at it from a fresh angle?"

Nelson Lund, a constitutional-law professor at the George Mason University School of Law, suggested the idea 25 years ago in an article published in the Alabama Law Review and made a similar free-market argument.

"If this were done, the private insurance market would quickly and efficiently make it prohibitively expensive for people with a record of irresponsible ownership of guns to possess them legally, but would not impose unreasonable burdens on those who have the self-discipline to exercise their liberty in a responsible fashion," Mr. Lund wrote.

But Stephen Halbrook, a research fellow at the free-market Independent Institute who has authored many books on the Second Amendment, called the gun-insurance idea "quacky" and likened it to individual journalists, in order to exercise the First Amendment’s free-press guarantees, being required to purchase insurance for potential libel or defamation lawsuits.

"It's not feasible," he said. "Talk about third-party criminal acts - no insurance company is going to insure that the so-called assault-weapons ban has a better chance of passing, but it's obviously not inevitable."

The insurance market would have to be complex, and there are many questions still to be answered, said Etti Baranoff, an associate professor of insurance and finance at Virginia Commonwealth University. She said the proposal raised major questions about risk-management strategies and exactly when government entities are immune from such liability.

"There are a huge amount of liability policies - insurance companies want to be in the business," she said. "If [gun owners] went to a private insurance company and bought [a plan], what kind of coverage [is it]?"

Still, the idea has gained some traction among academics and free-market advocates in the wake of the Newtown killings. The liability proposal was actually introduced in Illinois legislation in 2009. That bill required anyone in the state who owned a firearm to carry at least $1,000,000 of liability insurance "covering any damages resulting from negligent or willful acts" involving its use while they own it.

The bill received strong opposition from gun-rights groups such as the National Rifle Association and the Gun Owners of America. Opponents said the measure would punish law-abiding gun owners and could make owning a gun prohibitively expensive - raising serious questions about infringing on citizens' Second Amendment rights.

Another controversial provision in the bill stipulated that gun owners could be held liable if their gun was lost or stolen and someone else subsequently used it while committing a crime.

In the face of pressure from groups such as the NRA, state Rep. Kenneth Dunkin, a Chicago Democrat and the bill's sponsor, eventually tabled the measure.

Advocates for the initiative that legalized marijuana say its language is clear: Employers' substance abuse policies won't change under the new law.

But employers and their attorneys worry it's not that simple.

Now that parts of Initiative 502 went into effect Dec. 6, some employers are exploring options and there's a growing sense they need to narrow the language in their employee rules.

"I'm going to have to look at our policy," said Greg Luring, co-owner of numerous McDonald's franchises in Central Washington, following an informational meeting for employers hosted recently by the public safety advocacy group Safe Yakima Valley.

"It's up to us (employers) to be clear."

Yakima attorney James Elliott told employers gathered at the Howard Johnson Hotel to eliminate vague language, such as "under the influence" and "illegal drugs" from their policies. Elliott said to replace those terms with language such as "any detectable amount," "controlled substance" and "illegal under federal law."

"If you have a policy, look at it," Elliott said. "Dust it off."

Gary Lofland, another Yakima attorney and employment specialist, told employers the law doesn't stop them from testing their employees, but that doesn't mean there won't be challenges coming.

"My view is it doesn't change anything," Lofland said.

Lofland and Elliott, both attorneys with Velikanje Halverson, noted that a Seattle Teamsters official recently said some employers were "headed for a showdown," indicating that legal challenges and arbitration over drug policies could be coming.

In a telephone interview, Teamsters Local 117 attorney Dan Swedlow said he believes the law changes things for those employers without negotiated substance abuse policies in their union contracts. Being stoned on personal time and not while on the job should be treated the same way employers already treat alcohol use, he said.

"After Dec. 6, if a person says they smoked pot recreationally, there's no just cause" for termination, he said. "The burden of proof for discipline is always on the employer."

Swedlow said there are caveats to that stance that favor employers. One is that a union agreement that includes an agreed-upon drug policy that forbids any detectable amount of THC, the psychoactive chemical in marijuana, may be enough cause for termination regardless of when the employee used the drug.

"If a policy says absolute no drugs, and it's collectively bargained, then that's all there is to it," Swedlow said. "If there's a unilaterally implemented employer policy just handed to the union, that's not going to govern."

Lofland said the June 2011 state Supreme Court ruling in Roe v. TeleTech, which determined an employee registered as a medical marijuana patient in the state is not protected from an employer's drug testing policy, also protects employers' policies from tolerating legal pot use.

Swedlow said different standards can apply in arbitration cases, such as the challenge he won in December 2011 on behalf of a medical marijuana patient whose employer had suspended him when a urinalysis tested positive for marijuana use.

The arbitrator in that case noted that Seafreeze Cold Storage, which has facilities across the country, including Seattle, used a drug policy that the union hadn't agreed to that subjected employees to discipline for off-duty conduct.

In the decision, the arbitrator said the employer never argued that the levels of marijuana in the employee's drug test established impairment on the job.

"If an employer were not required to establish reasonable suspicion and/or apparent on-the-job impairment, it is difficult to imagine a limiting principle that would protect legitimate employee privacy interests," the arbitrator wrote in sustaining the employee's grievance.

Any exceptions would not cover federal employees or anyone with a commercial driver's license, as federal controlled substance laws and required testing still apply.

City of Yakima spokesman Randy Beehler said the City Council voted to put an addendum on the city employee drug policy in recent weeks that reaffirms the policy as it stands. Beehler said the city already does not conduct random drug testing or a pre-employment drug screening, but employees are still tested if there's reasonable suspicion they're impaired on the job.

"Impairment is the bottom line," Beehler said.

Swedlow said union employees in general are not interested in changing collectively bargained substance abuse policies.

In workplaces where those already exist, he says, employees are accustomed to working under it and would likely not forgo other benefits or wage increases in negotiations simply to do away with aspects of the company's drug policy.

However, Swedlow said, individual union branches such as his may still bring it up when it comes time for negotiations.

Tuesday, January 1, 2013

Employers in California and Illinois will be prohibited from demanding access to workers' password-protected social networking accounts and teachers in Oregon will be required to report suspected student bullies thanks to new laws taking effect in 2013.

In all, more than 400 measures were enacted at the state level during 2012 and will become law in the new year, according to the National Conference of State Legislatures (NCSL).

Some of the statutes, which deal with everything from consumer protection to gun control and health care, take effect at midnight. Others will not kick in until later in the year.

The raft of measures includes a new abortion restriction in New Hampshire, public-employee pension reform in California and Alabama, same-sex marriage in Maryland, and a requirement that private insurers in Alaska cover autism in kids and young adults, NCSL said.

In New Hampshire, a rarely used form of late-term abortion will become illegal except to save the life of the mother - and even then only if two doctors from separate hospitals certify the procedure is medically necessary.

John Lynch, the state's outgoing Democratic governor, had vetoed the measure, saying it would threaten the lives of women in rural areas. But the state's Republican-controlled legislature later overrode him.

Employers from not asking for social media sign-ons

In California and Illinois, laws that take effect at 12:01 a.m. local time will make it illegal for bosses to request social networking passwords or non-public online account information from employees or job applicants.

Michigan's Gov. Rick Snyder signed a similar measure into law this month that took effect immediately. The Michigan law also penalizes educational institutions for dismissing or failing to admit a student who does not provide passwords and other account information used to access private Internet and email accounts, including Facebook and Twitter.

But workers and job seekers in all three states will still need to be careful what they post online: Employers may continue to use publicly available social networking information. So inappropriate pictures, tweets and other social media indiscretions can still come back to haunt them.

Gun violence -- in places where it's all too common, such as Chicago, and in places where it's unexpected, such as Sandy Hook Elementary School in Newtown, Connecticut -- was big news in 2012. But only a handful of state firearms laws are set to take effect in 2013.

In Michigan, the definition of a "pistol" under the law will now include any firearm less than 26 inches in length. The new definition encompasses some rifles with folding stocks and will make the weapons subject to the same restrictions as pistols.

In Illinois, certain guns currently regulated by state law, including paintball guns, will be excluded from the definition of a firearm and participants in military re-enactments will be exempt from some weapons laws.

Another big story in 2012 was the effort by lawmakers in a number of cash-strapped states to put their public employee pension funds on a sounder financial footing.

In California and Alabama, reforms designed to begin to address the unfunded liabilities of those retirement systems will take effect in 2013.

Among the other new laws on the books in 2013:

-- In California, prison workers and peace officers will now be prohibited from having sex with inmates and prisoners in transport.

-- In Illinois, sex offenders will be prohibited from distributing candy on Halloween, or playing Santa or the Easter Bunny.

-- In Oregon, employers won't be allowed to advertise a job vacancy if they won't consider applicants who are currently out of work.

-- In Kentucky, residents will be prohibited from releasing feral or wild hogs back into the wild and Illinois will ban the possession and sale of shark fins.

-- And in Florida, the term "motor vehicle" will no longer apply to the specialized all-terrain vehicles with over-sized tires known as "swamp buggies" that are popular in some parts of the state.

The new year brings a new law that could affect the way some young people celebrate. It's a law aimed at underage drinking on party buses.

The new law came about after a 19-year-old from Burlingame was killed two years ago, driving home after drinking on a party bus.

Then Assemblyman and now State Senator Jerry Hill named the bill for the teenager, Brett Studebaker. Hill says the new law will hold the party bus driver responsible for underage drinking.

"The drivers now of buses, if they see or condone or ignore alcohol being consumed by minors on the bus, they will be subject to a misdemeanor similar to what limousine drivers are today," Senator Hill said.

Another deadly party bus incident occurred earlier this year. A 25-year-old Santa Cruz woman was killed after she and a minor fell out of a party bus. The victim died after being run over on Highway 17 in the Santa Cruz Mountains. Passengers on the bus had been drinking.

The new law also requires a chaperone 25 years or older if minors are party bus passengers to stop underage drinking. However, the CHP's role in enforcement is limited.

"If we stop them for any moving violation or mechanical violation, then that's when we'd be able to enforce that law," CHP Officer D.J. Sarabia said. When asked about spot checks, he answered, "Not sure if that's going to be on the table right now. We haven't gotten any direction from upper management, but that's a possibility."

Senator Hill believes the operators of party buses won't be in business long if they don't follow the new law.

"If they violate this, their license will be suspended," Senator Hill said. "It can be revoked so they can no longer have party buses, number one. And number two, they could no longer have their bus business that they have today. So the sanctions and penalties are severe."

Party bus drivers could be hit with a $2,000 fine if they don't comply with the law. They also will be responsible for verifying the age of anyone under the age of 21.